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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Sullivan County Probate Court

No. 2003-195

IN RE JUVENILE 2003-195

Argued: January 14, 2004

Opinion Issued: March 12, 2004

Peter W. Heed, attorney general (Mary P. Castelli, senior assistant
attorney general, on the brief and orally), for the State.

Buckley and Zopf, of Claremont (Anthony F. DiPadova, Jr. on the brief and
orally), for the respondent.

NADEAU, J. The respondent, appeals an order of the Sullivan County Probate Court (Feeney,
J.) terminating his parental rights over his son, the juvenile in this case, pursuant to
RSA 170-C:5, III (2002). We affirm.

The record supports the following facts. In 1998, the respondent was convicted of
unlawful contact with a female minor and given a probationary sentence. In July 2000, he
violated his probation by engaging in unlawful sexual contact with another female minor.
As a result, he was incarcerated in the Maine Correctional Facility to serve the balance
of a three-year sentence. On October 12, 2000, while the respondent was incarcerated, his
son was born.

Shortly thereafter, the New Hampshire Division for Children, Youth, and Families (DCYF)
filed a petition for neglect against the respondent that was later withdrawn. The
respondent, however, signed a consent decree, which required him to "undergo a
psychological evaluation and . . . follow any recommendations resulting there from,"
and to "follow all treatment requirements relevant to his incarceration in the Maine
Correctional Facility."

In February 2001, the respondent obtained a transfer from the Maine Correctional
Facility to the New Hampshire State Prison (State Prison) to facilitate visitation with
his son. In April 2001, the State Prison evaluated the respondent and recommended that he
participate in an intense sexual offender program lasting between twelve and sixteen
months. Entry into the program required admission of prior offenses or alternatively,
submission to a polygraph test. To avoid making an admission or submitting to a polygraph,
he applied to a less intensive program. The State Prison denied him admission, however,
because the program was not appropriate for an inmate with his sexual offender history.
Because the respondent continued to deny committing the second sexual offense that led to
his probation violation, the State Prison scheduled a polygraph for admission to the
intensive program in June 2001. The respondent, however, refused to take the polygraph and
thus was ineligible for the program.

On June 21, 2001, the Newport District Court ordered that a psychological evaluation of
the respondent should be conducted and submitted to the court. The court also ordered that
the respondent have one supervised visit per month with his son. In August 2001, Dr.
Wayment conducted a psychological evaluation of the respondent. She found he had a
significant history of sexual offending, and recommended he undergo a psychosexual
evaluation, which the district court ordered. The court also ordered continuation of his
supervised monthly visitation with his son.

A few months later, Dr. Vanaskie conducted a psychosexual evaluation of the respondent.
Dr. Vanaskie recommended that reunification be delayed until the respondent successfully
completed an intensive offense-specific treatment for his sexual behavior. Dr. Vanaskie
classified him as posing a moderate to high risk of reoffending during the treatment
process.

In January 2002, the district court conducted a permanency hearing and discontinued
visitation pending the outcome of a parenting evaluation. The court ordered the respondent
to follow all recommendations of the psychosexual and parenting evaluations. After the
hearing, the respondent wrote a letter to the State Prison requesting confirmation that he
did not have enough time remaining on his sentence to complete the prison sexual offender
program. The director of the sexual offender program responded, however, that had he taken
the polygraph scheduled by the prison, he "would have had plenty of time to do
it" before his earliest possible release date.

In April 2002, the district court reiterated its previous order and adopted DCYFs
recommendations ordering the respondent to follow all recommendations resulting from the
psychosexual evaluation by Dr. Vanaskie. Specifically, the order provided that he
"shall participate meaningfully and complete a sexual offenders treatment
program, he shall participate and complete appropriate parenting classes and he shall
participate in substance abuse counseling." The court also reinstated supervised
monthly visitation with his son.

In October 2002, the district court conducted a review hearing. The court found
that the respondent failed to complete or participate in the sexual offender treatment
program even though it was offered at the State Prison, failed to undergo a parenting
evaluation and a substance abuse evaluation, which were available at the prison, and would
not start addressing his issues in treatment until his scheduled release in June 2003. The
juvenile would be three years old upon the respondents scheduled release, and would
likely be four or five by the time the respondent completed a sexual offender program
outside prison. The court found this delay to be unacceptable, and inconsistent with the
goal of permanency for the juvenile. It ordered cessation of reunification efforts, but
permitted the respondent to have supervised visitation at the discretion of DCYF and in
consultation with the guardian ad litem.

In November 2002, DCYF filed a petition to terminate the parental rights of the
respondent, alleging failure to correct conditions of neglect or abuse under RSA chapter
169-C relating to the consent agreement. In February 2003, the probate court held a
parental termination hearing. MaryAnn Babic-Keith, a DCYF supervisor, testified at the
hearing. She explained that she supervises the caseworkers, regularly discussed the
respondents case with both caseworkers, and reviewed their reports prior to
submission to the court. She testified that Todd Basler, a caseworker for the juvenile,
stopped working for DCYF and moved to California. She also testified that Roberta Bell,
another caseworker for the juvenile, stopped working at DCYF, sold her house, and moved
out of state, possibly to New York.

The respondent also testified at the hearing. In response to questions concerning
his failure to participate in a prison sexual offender program, he testified that the
program had not yet been recommended by Dr. Vanaskie at the time the prison evaluated him
for it, he wanted to resume treatment with a former counselor in Maine, and he thought
participation in the program might extend his prison release date. Dr. Vanaskie also
testified, stating that the respondent posed a moderate to high risk of reoffending, and
that until he completed a sexual offender program, reunification with his child would be
impossible because his ability to parent could not be properly assessed.

The probate court found Dr. Vanaskies testimony compelling. It also found the
respondent had had the ability to complete the sexual offender counseling and treatment
while in prison, but failed to do so. The court found that he was given an opportunity to
demonstrate he is capable of caring for his child, but failed to do so. Finding it was in
the juveniles best interest, the probate court ordered the termination of the
respondents parental rights. This appeal followed.

On appeal, the respondent contends that: (1) the probate court improperly terminated
his parental rights because the State failed to prove beyond a reasonable doubt that DCYF
made reasonable efforts toward reunification with his son; (2) the probate court erred in
its interpretation of RSA 170-C:10 (2002) by impermissibly admitting into evidence a
report of an available witness; and (3) pursuant to Part I, Article 15 of the New
Hampshire Constitution, he has a right to confront witnesses in a termination of parental
rights hearing. We address these arguments in turn.

Before a court may order the termination of a parents rights, the petitioning
party must prove a statutory ground for termination beyond a reasonable doubt. In re
Antonio W., 147 N.H. 408, 412 (2002). One such ground is the failure to correct
conditions leading to a finding of neglect under RSA chapter 169-C. RSA 170-C:5, III. Once
the probate court has found such proof, it must then consider whether termination is in
the childs best interest. In re Antonio W., 147 N.H. at 412.

To satisfy its burden under RSA 170-C:5, III, the State must make reasonable efforts to
rectify the conditions leading to a neglect finding. In re Jonathan T., 148 N.H.
296, 301 (2002). In analyzing these efforts, we have recognized that the States
ability to provide adequate services is constrained by its staff and financial
limitations. Id. Thus, the State must "put forth reasonable efforts given its
available staff and financial resources to maintain the legal bond between parent and
child." Id. We will not disturb the probate courts decree unless it is
unsupported by the evidence or plainly erroneous as a matter of law. In re Antonio W.,
147 N.H. at 412.

The respondent contends that after his transfer to the State Prison in 2001, the
initial six-month delay in scheduling the court-ordered psychological evaluation was
unreasonable. We disagree. Within a few months of his transfer to the State Prison, the
respondent was evaluated and recommended for the sexual offender program. Only because he
denied committing the second offense was his participation in the program delayed two
additional months so that a polygraph could be administered as required for the program.
When the polygraph was offered to the respondent, he refused to take it.

Additionally, the State could legitimately deny him admission into the less intense
program because his history of offending required him to submit to more intensive
treatment than the shorter treatment program offered. Reasonable efforts were made to
enable the respondent to participate in the appropriate program. Because the delays
complained of were at least in part attributable to the respondent, we do not find them
unreasonable.

Moreover, even if the initial delay were unreasonable, the State provided the
respondent with numerous opportunities to schedule future evaluations and treatment
programs. In August 2001 and October 2001, respectively, the respondent received
psychological and psychosexual evaluations, which recommended offense-specific treatment
for his sexual behavior. In April 2002, the court specifically ordered the respondent to
"participate meaningfully and complete a sexual offenders treatment
program." However, his refusal to take a polygraph prevented him from participating
in the required sexual offender program. Instead, he arranged to participate in a
treatment program in the community upon his release. While his efforts to secure
post-release treatment are commendable, his refusal to participate in the intense sexual
offender program while in prison constituted a failure to comply with the recommendations
of his psychological and psychosexual evaluations, and thus a failure to comply with his
consent decree. Therefore, the record supports the probate courts finding that the
respondent failed to address his sexual offender issues. In failing to comply with his
consent decree, he failed to correct conditions leading to a finding of neglect.

In the alternative, the respondent contends that even if the evidence supports a
finding of failure to correct, terminating his parental rights is not in the best interest
of the juvenile. We disagree. When determining the best interests of the child, we have
previously considered the nature of the parents conduct in correcting conditions
leading to a finding of neglect. SeeIn re Jonathan T., 148 N.H. at 303-04; In
re Tricia H., 126 N.H. 418, 422-23 (1985). Where the parents refused to cooperate with
the service providers and follow through with their recommendations and instructions, we
have upheld termination of parental rights as in the best interest of the child. SeeIn re Jonathan T., 148 N.H. at 303-04; In re Tricia H., 126 N.H. at 422-23.
The record is replete with evidence demonstrating that the respondents unwillingness
to comply with the terms of his consent decree, including the requirement that he complete
a sexual offender program, was a major barrier to reunification with his son. We agree
with the district and probate courts finding that waiting until the respondent
completed post-incarceration treatment (at which time, the juvenile would turn four or
five) is not in the juveniles best interest. Because the respondent has not
demonstrated that the probate courts order was unsupported by the evidence or
plainly erroneous as a matter of law, we will not overrule it. In re Antonio W.,
147 N.H. at 412.

Next, the respondent contends that the probate court erred by admitting into evidence
the report of DCYF caseworker Roberta Bell, whom he contends was available within the
meaning of RSA 170-C:10. While the respondent concedes that the court properly determined
that Bell was living out of state at the time of the hearing, he argues the court failed
to address his argument that she was "otherwise reasonably available." The
respondent contends that Bells attendance at the pretrial conference necessarily
made her "reasonably available" for the hearing because the State could have
subpoenaed her at that time. We disagree.

The admissibility of evidence is committed to the sound discretion of the trial judge,
and such a ruling will not be disturbed on appeal unless there has been an unsustainable
exercise of discretion. In re Antonio W., 147 N.H. at 414. RSA 170-C:10 provides,
in relevant part: "When information contained in a report, study or examination is
admitted in evidence, the person making such a report, study or examination shall be
subject to both direct and cross-examination if he is residing or working within the
state, or if he is otherwise reasonably available."

Here, the State presented evidence that Bell terminated her employment with DCYF, sold
her home, and moved out of New Hampshire, possibly to New York. Moreover, the record
reflects that all parties were made aware at the pretrial conference that Bell would be
unavailable for the late February trial date. Thus, the respondent had the opportunity to
seek alternative means of obtaining Bells presence, including issuing a subpoena of
his own. Based upon these facts, the probate court properly found that Bell was not
residing or working within the State nor reasonably available at the time of the hearing. Cf.
In re Antonio W., 147 N.H. at 413; In re Jonathan T., 148 N.H. at 299-300.
We conclude that it was a sustainable exercise of discretion to admit Bells report.

Finally, the respondent contends that we should apply the Confrontation Clause of Part
I, Article 15 of the New Hampshire Constitution to proceedings to terminate parental
rights. He concedes that because an action to terminate parental rights is civil, the
Sixth Amendment confers no right of confrontation. See U.S. CONST. amend. VI; In
re Noah W., 148 N.H. 632, 638 (2002). He contends, however, that because our State
Constitution provides more protection of individual rights, we should apply the
Confrontation Clause of Part I, Article 15 to proceedings to terminate parental rights.
Further, he argues that the absence of witnesses who co-authored reports that were
admitted into evidence violated his State constitutional right to confront witnesses
against him. We have never decided whether the Confrontation Clause of Part I, Article 15
applies to proceedings to terminate parental rights. We hold that it does not.

Under the State Constitution, "[e]very subject shall have a right . . . to meet
the witnesses against him face to face." N.H. CONST. pt. I, art. 15. We have
recognized that parental rights are natural, essential and inherent rights within the
meaning of our State Constitution. In re Noah W., 148 N.H. at 636. "Given the
severity of the termination sanction, and the significance of the parental interest, we
have held that to terminate parental rights, due process requires proof beyond a
reasonable doubt." Id. at 636 (quotation omitted).

RSA chapter 170-C provides the defendant with substantial protections. First, he is
given notice of his hearing. See RSA 170-C:7 (2002). The defendant has the
opportunity to conduct direct and cross-examination of a person who prepared reports or
conducted studies or examinations of the defendant if the information contained in them is
admitted into evidence, and if the person is residing or working in the State, or is
otherwise reasonably available. See RSA 170-C:10. The court may also require the
presence of necessary witnesses. Seeid. Finally, the defendant shall
receive notice of his right to counsel, "and if counsel is requested and the parent
is financially unable to employ counsel, counsel shall be provided by the court." Id.

A termination of parental rights proceeding, however, does not require the full panoply
of constitutional rights that are afforded to a criminal defendant. SeeIn re
Adoption of Don, 755 N.E.2d 721, 729 (Mass. 2001); In re Baby K., 143 N.H. 201,
204 (1998). For example, in In re Baby K., we concluded that "due process does
not absolutely require an incarcerated parents physical presence at a parental
rights termination hearing, provided the parent is otherwise afforded procedural due
process at the hearing." In re Baby K., 143 N.H. at 204.

The Confrontation Clause of our State Constitution is identical to the language
contained in Part I, Article 12 of the Massachusetts Constitution. On prior occasions, we
have given weight to the Massachusetts Supreme Judicial Courts interpretation of
Part I, Article 12 of the Massachusetts Constitution. SeeState v. Roache,
148 N.H. 45, 49 (2002). Because the language of the Confrontation Clause is identical, and
given the shared history of our state constitutions, we again give weight to the
Massachusetts Courts interpretation of an identical provision. Seeid.

In In re Adoption of Don, the Massachusetts Supreme Judicial Court determined
that it would not apply the Confrontation Clause to a proceeding to terminate parental
rights. In re Adoption of Don, 755 N.E.2d at 728-29. The court noted the
protections afforded parents in child custody and parental termination rights proceedings,
and reiterated its rejection of incorporating all the constitutional rights afforded to a
criminal defendant. Id. at 729. The court concluded "that the unique
characteristics of a termination of parental rights proceeding [do not] require
incorporating the art. 12 right of face-to-face confrontation guaranteed to defendants in
criminal cases." Id. at 729. We agree.

RSA chapter 170-C provides parents in a termination of parental rights proceeding with
numerous procedural protections. We are not persuaded, however, that the distinctive
nature of a termination of parental rights proceeding requires integrating the protections
guaranteed to a criminal defendant under the Confrontation Clause of our constitution.
Thus, we decline the invitation to do so.